Thursday, 30 June 2011

So much has been happening in Tunisia this year that one might easily miss Hague Notification No. 110: Acceptance of termination by the Republic of Tunisia. According to the WIPO news release, the Government of the Republic of Tunisia deposited, on 10 June 2011, an instrument of acceptance of the termination of the effectively extinctLondon Act of the Hague Agreement Concerning the International Deposit of Industrial Designs. According to WIPO, a separate notification will be made on the coming into effect of the termination when the required number of acceptances is reached.

Wednesday, 29 June 2011

From Public Interest Intellectual Property Advisors (PIIPA)'s June 2011 Newsletter comes this item:

"Establishing IP Centers of Innovation and Creativity in African Universities - The establishment of IP Centers of Innovation and Creativity (IP-CIC) at leading higher education institutions in Africa is an important first step towards enabling the educators, inventors, businesses and service organizations in these countries to begin to realize protection and financial gain from their creative endeavors. The use of IP systems further helps countries to address food security, poverty reduction, improves access to medicines, protects biological diversity, and increases opportunities to use clean technologies to address climate change. This initiative will also assist countries in attaining the Millennium Development Goals (MDGs)".

A full account of this initiative can be downloaded in the form of a short document (10 pages, with a big table of acronyms) here. The objectives of the three-year plan are as follows:

"1. Enable acquisition, transfer and utilization of technology to and from the university in a responsible manner so that the institution becomes accountable to the government, the public (the tax payers) and the inventors.

2. Facilitate and strengthen links between the university and the private sector due to the increased confidence of industry that their business secrets and confidential information can be safeguarded by the public sector during and after their collaboration.

3. Play a role in the reduction of brain drain in the institution because researchers will become assured and inspired by the provision in the IP policy of sharing benefits arising out of their
inventions /innovations that reach the market and generate royalties.

4. Enable the generation of income for the institution and hence for the government.

5. Enable the harmonization of interests of the stakeholders in the university and the society chain of creativity and its utilization.

7. Guard against premature disclosure of inventions at the university.

8. Facilitate the resolution of IP disputes.

9. Contribute significantly to national development and economic empowerment because many useful inventions translate into many jobs.

10. Be an IP/technology transfer (TT) focal point for those who cannot afford to reach the national IP offices".

Afro-IP will monitor developments as best it can. The brain-drain point is, it seems to him, particularly important since even the best innovation creation and management system in the world can't operate better than the quality of those running it, whereas a bad system run by bright, imaginative people can still achieve quite a bit.

Tuesday, 28 June 2011

Afro Leo lets out a roar of thanks to his friend Bolanle Olowu (partner, IPI Watch Services, Lagos), for drawing his attention to an article, "Patent Right Infringement: Court Awards Nl.2bn against Claxosmithkline" (sic), which was reported at page 3 of today's THISDAY newspaper, published in Nigeria. The article reads as follows:

"A Federal High Court in Lagos yesterday awarded N12 billion as damages against a multinational pharmaceutical firm, Glaxosmithkline Consumer Nigeria PIc (GSK). and its parent company, Smithkline Beecham Pic, based in tbe United Kingdom for infringing on the trademark and patent right of a Lagos-based indigenous pharmaceutical company, Continental Pharmaceutical Limited (CPL).

The court also placed a perpetual order restraining the companies and their agents from adopting the features of the plaintiff's registered trademark comprising the eclipse logo with blue and white package design for the manufacture and sale of the Panadol and Panadol Extra products.

Delivering judgment in the 16-year-old legal battle that witnessed about 50 appearances by counsel to the suit, Justice James Tsoho not only dismissed GSK's counterclaims dated January 22, 2009 but also awarded another N 150,(XX) against the defendants as exemplary cost following the application by the plaintiff's.

In the verdict, which lasted for two hours, the judge held that the defendants illegally adopted the plaintiff's trademark to deceive the buying public in an attempt to pass out their Panadal as the plaintiff's product. The judge barred the defendants from importing, manufacturing, selling or supplying any analgesic preparation containing the active ingredient known as ''Paracetamol'' bearing the name PanadaI or Panadol Extra in a container or any packaging with the logo closely resembling the plaintiff's registered trademark for Conphamol to mislead the public.

He also ordered the defendants to swear to an affidavit that it would remove all goods in their custody, control and possession bearing the marks complained about by the plaintiff and which would be a breach of the orders of the court.

While describing the defendants' submission regarding the copyright's idea and ownership as inconsistent, Justice Tsoho submitted that it was wrong for them to assume that the ownership of copyright between an employee and employer could be the same.

It faulted the defendants' submission that it had been marketing Panadol products prior to 1981, saying that this did not mean that it did not infringe on the plaintiff's trademark and copyright.
He further held that the plaintiff's Registered Trade Mark (RfM) 40551 and device was valid and subsisting and consequently dismissed the defendants' counter-claims that they did not infringe on the plaintiff's trademark.

The judge however refused to award the plaintiff's relief seeking aNl,(XX) per package cost on the proceeds of the infringed trademark prescribed under section 20(1) of the Copyright Act, Cap C of the Law of the Federation of Nigeria 2004, saying that it related to crirninal matters liable upon conviction and not applicable to civil proceeding such as the suit.

While the judge awarded N5OO million against the defendants as damages for passing-off and for infringing on the plaintiff's registered trademark for Conphamol and Device in Class 5, he awarded N700 million as special damages for infringing on the copyright in the artistic work of the trademark.

Trouble started for the defendants when the plaintiff, in its statement of claim, stated that after due diligence it registered. a product known as Conprunnol on November 10, 1981. It contended through its counsel, Mr. Ekpe Asuquo, that upon a test that was conducted by the Trademarks Registry on the said "Conphamol and Device" applied for, it revealed that there were no conflicting marks on the Register which made "Conphamol and Device" to be accepted and numbered 50551 for publication on June 14,1982.

The plaintiff also contended on March 20,1992, that the registration was renewed for a period of 14 years with effect from November 10, 1988, adding that since then, it had exclusively, extensively and continuously used its registered trademark in relation to its phannaceutical preparation, Conphamol, for the treatment of rheumatic pains, toothache, period pains, cold and influenza, chest and throat infections, mild immunisation and vaccination reaction in Nigeria and abroad particuIarly the ECOWAS sub-region without objection to any individual or Corporate body and sold multi-millions of naira.

However, it stated that in 1995, it started noticing various phannaceutical purporting to be analgesic preparation containing the active ingredient ''Paracetamol'' not to its manufacture but sold in packages and get-ups sirniIar and identical to its registered trademark for Conphamol".

This decision, also reported in the Nigerian Observer here, has surprised some readers, as has the magnitude of the damages award, and sources inside Nigeria expect the defendants to appeal. The report is somewhat muddled at times; it does not appear that there were any patents in dispute.

Afro Leo hopes that readers -- particularly those from Nigeria -- will give their appraisal of this ruling.

Monday, 27 June 2011

In this, the second in Afro-IP's series of visits to the official IP websites of African states, online sleuth Kingsley Egbuonu takes a trip to Angola and comes back disappointed. He writes:

Office(s) for copyright and related rights

• The Ministry of Culture is responsible for the regulation and administration of copyright and related rights.
• The competent administrative offices under the Ministry are the National Institute for Cultural Industries (INIC) and the National Directorate of Entertainment and Copyright.
• Neither office apparently has or maintains any website.

Office(s) for industrial property rights

• The Ministry of Industry (MIND) regulates and administers intellectual property rights - trade marks, patents, and designs.
• MIND has a website (www.mind.gov.ao) in the Portuguese language, dated 2006.
• The competent administrative office under MIND is the Angolan Institute of Industrial Property (IAPI).
• IAPI does not have a website dedicated to it, but information on filing and other procedures can be found on MIND’s website under questions and answers (when translated using Google translate).

Ultimately, it is safe to say that Angola does not currently have a website for its intellectual property office".

Sunday, 26 June 2011

“Over 5 million counterfeit cigarettes bearing Philip Morris International trademarks were seized in the port of Durban in 2008,” said Tobacco Institute of South Africa Chairman, Francois van der Merwe.

Van der Merwe said more than R2 million in excise tax and VAT would have been lost to the revenue coffers if the cigarettes had found their way into the South Africa market.

“The illicit trade in cigarettes currently comprises more than 20 percent of the total cigarette market in South Africa, which equates to approximately 6 billion illegal cigarettes per year,” he said. (Sapa)

The penalties if a retailer, or reseller, is caught with illicit products and prosecuted under the Customs and Excise Act (evasion of taxes) are: A fine of R20 000 or three times the value of the goods, depending of which one is the greatest; or up to 5 years on prison. A person prosecuted can therefore pay a fine and go to jail. (TISA)

Wednesday, 22 June 2011

It is a year to the week since the arrest of the so-called Bavaria Babes for alleged ambush marketing made media headlines across the world. Although the great interest and debate over ambush marketing laws in RSA at the time is now about as sleepy as a night clubber in church the morning after, it continues with great fervor in other parts of the globe - INTA's San Francisco conference in May whisked up keen interest over those dresses and London is abuzz with discussion ahead of the 2012 Olympic Games where draft regulations have just been published for public comment.

This Afro Leo has more than a passing interest in the subject since his post on Afro-IP ushered him into the fray a year ago. Recently he was asked to speak at workshop held in London on whether South Africa's legislation was a template for global legislators seeking to curb ambush marketing. He was joined by Ken McKay, Dr Belinda Isaac and David Abrahams in a lively and entertaining discussion at the LESI Annual conference.

Ken is a vastly experienced lawyer acting in the interests of the Olympic Games, Belinda runs her own firm in London and who will no doubt be advising on the local regulations in the time leading up to the Games and David, apart from running Brand Mediation, is an excellent facilitator.

This Afro Leo's thoughts though are quite simple. Making ambush marketing an offense whereby powers of arrest may be exercised is about as good at curbing ambush marketing as dousing a fire with paraffin. Arrests attract publicity and that is what ambush marketing is all about. Template no, dinner plate - yes. It is a pity too that our laws have not endured judicial rigor.

Monday, 20 June 2011

It is with great sadness and shock that I let you know you of the tragic passing of Llewellyn Parker over the weekend in a flying accident. He will be sadly missed. Our thoughts and prayers are with his family and friends.

In this, the first in a series of weekly A-to-Z review of official IP websites, Afro Leo's friend Kingsley Egbuonu visits the People`s Democratic Republic of Algeria -- and this is what he finds:

Office for copyright and related rights

• The National Office of Copyrights and Related Rights (ONDA) under the Ministry of Communication and Culture is responsible for the protection and management of copyright in Algeria.

• The office has a working official website (http://www.onda.dz/) which is in French, though some useful documents (e.g. forms) are either in English or Arabic.
• The structure of the website appears interactive (for authors as well as third parties) and, among other things, users can seek to obtain authorisation to exploit protected works.

• The website does not make use of social media platforms.
• Although a few pages on the website remains under construction and the copyright notice is dated 2009, it has received over 601,000 visitors.

Office for industrial property rights

• The Algerian National Institute of Industrial Property (INAPI) is the main authority responsible for the examination, registration and protection of rights in patents, trade marks, industrial designs, integrated circuits and appellation of origin.

Sunday, 19 June 2011

Afro-IP has obtained a copy of a High Court ruling delivered on 1st December 2010 quashing an earlier ruling by the Industrial Property Tribunal- in which the Tribunal had declared that it had no jurisdiction to hear applications for revocation of patents granted by ARIPO. See Afro-ip’s previous post.

The High Court ruling arises from an ex-parte application filed on 15th December 2009 by Chemserve Cleaning Services limited (applicant) for judicial review of the Tribunal’s ruling. The applicant also sought an order to compel the Tribunal to reinstate, hear, and determine an application for revocation of ARIPO patent AP 773 filed on 12th April 2008.

It was expected that the High Court would consider in detail the proper interpretation of section 59 of the Industrial Property Act, in particular the extent to which the section gives national effect to patents granted by the regional organization. Surprisingly, the High court’s decision was influenced by a letter by ARIPO to the applicant pointing out that revocation of an ARIPO patent can only be pursued under the national law.

It would appear that soon after the Tribunal’s ruling, the applicant wrote to ARIPO seeking opinion whether or not ARIPO could entertain an application to revoke the patent as suggested by the Tribunal. The Tribunal had advised the applicant to file revocation proceedings in ARIPO. In response, ARIPO stated that it had no jurisdiction on the matter either, and it would seem the High Court believed the latter.

In quashing the Tribunal’s ruling the High Court observed that ARIPO’s reply “is sufficient to dispose off the question as to whether the [Tribunal] has jurisdiction or not”, and concluded that, “in view of the contents of the letter … it is evident that the [Tribunal] was in error in holding that it lacked jurisdiction”.

The order by Musinga J requires the Tribunal to reinstate, hear, and determine the application for revocation of the patent.

Thursday, 16 June 2011

The World Intellectual Property Organization (WIPO) has announced today two pieces of news concerning Rwanda.

The first is that, as recorded inHague Notification No. 109, the Government of the Republic of Rwanda has deposited its instrument of accession to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs.

The second, as heralded by PCT Notification No. 198, is that the Government of the Republic of Rwanda has deposited its instrument of accession to the Patent Cooperation Treaty (PCT).

Both treaties come into force with respect to Rwanda on 31 August of this year.

It is very encouraging to see how determinedly Rwanda is pushing ahead with the IP Policy which it adopted last year (see earlier Afro IP post here).

Tuesday, 14 June 2011

Afro Leo has just been admiring the websiteof the Kenya Copyright Board, which looks very handsome though he thinks it must still be very new. The website's copyright notice says '2010' and there's no news in the news archive. Still, this initiative should be applauded. He calls on readers to send the Copyright Board some old bits of Kenyan copyright news that they can populate the archive with till they have from fresh news of their own to put there. Perhaps more importantly, he calls on all good enthusiasts to follow the Kenya Copyright Board here on Twitter, where they can share news, views and ideas with the Board. One further matter: the Board should put a link to its Twitter account from its website, to alert readers and build up its following.

How many other African states have equivalent facilities? It would be good to know.

PS At the time of posting, Kenya Copyright Board has just 111 followers on Twitter. Afro Leo hopes that, by the time he next visits, this figure will me much higher.

Friday, 10 June 2011

"WIPO Director General Announces Rights Registry Project for West African States" is the title of a media release this week from the World Intellectual Property Organization which reads as follows:

COS without WIPO

"WIPO Director General Francis Gurry ... announced a project to build a common digital platform which will help streamline the identification of protected musical works across 11 West African countries, helping creators from these countries get paid for their work through a simplified and standardized rights registration system. U.S. firm Google will be WIPO’s technology partner in developing this new web-based system [note: this is not the first partnership between Google and an international intellectual property body. Late last year cooperation between Google and the European Patent Office was announced for the purpose of improving the standard of patent translations], which builds upon WIPOCOS (WIPO Software for Collective Management of Copyright and Related Rights).

A project using WIPOCOS to build more efficient copyright infrastructures in developing countries was approved by WIPO member states as part of the Organization’s Development Agenda. WIPOCOS will help collecting management organizations in the participating countries share information on the identification of works and relevant interested parties, making cross border licensing easier. The 11 countries involved in the current phase of the project are Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Guinea, Mali, Niger, Nigeria, Senegal and Togo. ...

The WIPOCOS system will enable streamlining of administrative costs relating to collective rights management, making the reporting of usage for royalty allocation less expensive and more efficient. Connecting these 11 societies to the rest of the world through this initiative will make rights information about West African music more accessible to other societies worldwide. WIPOCOS will link together information about the creator, his works and related metadata so that use of the music by licensees can be properly accounted for [Apart from simplifying rights administration and making it cheaper, this system should be easier to monitor, thus reducing opportunities for maladministration and fraud]".

Sunday, 5 June 2011

From Bolanle Olowu (partner, IPI Watch Services, Lagos) comes news that the following announcement was published on Thursday 2 June in Thisday:

"The Commercial Law Department of the Ministry of Commerce and Industry; the Intellectual property arm of the Federal Republic of Nigeria, has launched its online registration portal, www.iponig.com for the registration of Trademarks, Patent and Designs and will commence online operations from 6th of June, 2011.